In documents seen by EDRi, the current Cyprus Presidency of the Council of the European Union made a proposal at the beginning of October to delete the criminal sanctions section of the proposed EU/Canada Free Trade Agreement.

Following initially positive responses from the Member States, it has now been provisionally agreed that the deletion of criminal sanctions from CETA are now part of the EU negotiation strategy with Canada.

The General Secretariat of the Council raised the alarm in July, asking Member States if it was sustainable to have ACTA-like criminal sanctions in CETA. The Secretariat worried that the inclusion of ACTA-like text previously rejected by the European Parliament might lead to CETA also being rejected. As finalisation of CETA is a priority for the European Union, there now appears to be a consensus that this is a risk that is not worth taking.

However, the issue of criminal sanctions for “camcording” (filming in a cinema) is still causing problems. It was opposed by the EU and others in ACTA and was ultimately abandoned as an obligatory provision in ACTA (article 23.3). Now, all EU Member States are opposed – some quite fundamentally so – to inclusion of similar provisions in CETA.

The suggested (and rather absurd) compromise on this issue is that an optional provision could be introduced (as in ACTA). In an agreement between one country that already has criminal sanctions and a union of 27 countries that neither have nor want such sanctions, CETA could say that “parties may provide for criminal procedures and penalties” for such offences.

Canada’s enthusiasm for criminal sanctions for camcording in CETA is somewhat baffling. It only has a specific law in place since 2007 and the law was initially opposed by the Justice minister who saw no need for it. Subsequently, following lobbying from the US ambassador and even more heavyweight lobbyists, a law was introduced and passed through three readings of the lower house of the Canadian parliament and three readings of the upper house in just… three weeks! A US cable (ref:07OTTAWA1076) released by Wikileaks said that an attempt by a Canadian Minister to claim that this was a Canadian policy that was not influenced by US lobbying was “disingenuous”.

Will this absurd “compromise” on camcording be in the final text of CETA, despite unanimous opposition by all EU Member States? It depends on Canada. If Canada is prepared to waste negotiating power for something that it has no strategic economic interest in, if it is prepared to prioritise this point ahead of issues where it does have an economic interest… then the EU could be persuaded – although not without extracting concessions from Canada, obviously. Whether Canadian citizens will be persuaded that it is a good idea for its government to prioritise (perceived) US interests above their own is a very different question.

Finally, all of this does not mean, of course, that there will not be other major problems in CETA. The lack of transparency of the negotiations strongly suggest that all is not well with the (still unpublished) current draft.